News and views about legal academia and the legal profession by Brian Leiter (University of Chicago) and Dan Filler (Drexel University)

December 20, 2007

Trends in Law Blog Readership

Blog Emperor Caron has, of course, collected the facts! Traffic stats are, in one sense, misleading, since there are huge differences in visit length between blogs as well. The average length of a visit to this blog tends to be over one minute and forty seconds most of the time; the average length of a visit to the right-wing Instapundit blog, by contrast, tends to be about four seconds. So how does one combine these two data points--number of visits and length of visit--for a meaningful gauge of readership? Who knows?

December 19, 2007

The Hopeless Association of American Law Schools

With another meeting on the horizon, I thought I'd flag my post on the AALS meetings from a few years ago. Whether it is the meetings of the American Law & Economics Association, or the annual Analytic Legal Philosophy conference, or the newer Empirical Legal Studies conferences, my sense is that specialist meetings of scholars have completely displaced the AALS as the destination of choice for those looking for conferences with intellectual content. Am I wrong? (As usual, unsigned comments are unlikely to appear.)

Students Suing Their Law Schools: A Trend?

The Duke Lacrosse Case: A Duke Professor Pens An Expose of KC Johnson

KC Johnson is the Brooklyn College history professor who became obsessed with the false charges filed against Duke lacrosse players (after an allegation of rape by an African-American stripper hired to entertain them at a party), and has since written a book on the subject with a journalist. Johnson attracted attention well before that in connection with his battle for tenure at Brooklyn College, where his department tried to deny him tenure on the notoriously slippery "collegiality" grounds--deeming him "immoral, dishonest, disrespectful, and arrogant"--notwithstanding a strong record of teaching and scholarship. In the end Johnson prevailed in his bid for tenure, becoming at the same time a poster boy for conservative media looking for victims of "political correctness" in the universities.

Perhaps because of his bitter experience with tenure, Johnson has not been content merely to write an expose of the corrupt Durham prosecutor responsible for the Duke lacrosse travesty, but has launched a jihad against any Duke faculty member he deems to be associated with the case (some of whom report, in turn, being viciously harassed by the large stable of right-wing readers of Johnson's blog site devoted to the case--naturally, Johnson denies having anything to do with that). His ire is particularly aimed at those he dubbed "the Group of 88," Duke faculty (not "organized" as a "group" as far as I can gather) who signed an ad in a campus newspaper after the allegations of rape first surfaced. You can see the ad here. The ad, quite explicitly, uses the occasion of the rape allegations to call attention to problems of racism and sexism at Duke unrelated to these allegations; it makes fairly clear that there are issues about racism and sexism at Duke that are independent of the guilt or innocence of the accused players.

Alas, KC Johnson doesn't read too well, and like most misreaders with an agenda, he misreads with a vengeance. This misrepresentation is typical:

I first noticed this case because of the Group of 88’s ad. Published on April 6, 2006, it unequivocally declared that something happened to Crystal Mangum [the stripper] and publicly expressed thanks to protesters who had carried “castrate” banners and blanketed the campus with “wanted” posters. Such a document betrayed the signatories’ duties as professors to defend due process and seek the dispassionate evaluation of evidence.

Read the ad for yourself, and see if you can find compelling evidence for these claims.

Not content simply to misrepresent the ad the faculty took out, Johnson has also moved on to deride their intellectual work, about which it is not apparent he knows very much other than that it concerns topics he deems unworthy, like race and gender (scroll down to the section on "The Academy" in this long post for a good example; this post is also representative, both of his attacks on faculty and misrepresentation of the ad). When the Volokh blog, which often runs hatchet jobs on faculty whose politics are to its left, invited Johnson to blog there, he naturally continued his attacks on Duke faculty, not just for their role (real or imagined) in the Duke lacrosse scandal, but also on their scholarship.

I saw your posting on Johnson on your blog. Piot's article [the critique of Johnson] has a number of holes in it. The first is his assertion on page 160 that the "88" ad was "neither about the lacrosse players nor about the party." Wahneema Lubiano, who drafted the ad, clearly thought otherwise: Here is an e-mail that she sent soliciting support for the ad:

"African & African-American Studies is placing an ad in The Chronicle about the lacrosse team incident. We’re trying for Thursday (04/05) if we can do it; if not, then next Monday (04/10). I’ve attached a draft of the ad to this email. The attachment is just a draft of the text; we’re still working on design elements. The ad is built around student articulations.

AAAS is sending the ad draft to Cultural Anthropology, Literature, and History, but we don't have an email list of all department and programs chairs, and I don't have time to put one together, so if you are willing to spam this to other individual faculty or to your chairs to see if they're interested in supporting the ad and so that as many faculty as possible have a chance to see it and sign on, we would appreciate it.

If you would like to be a signatory to the ad, please send your names to me at [Lubiano's e-mail]. PLEASE DO NOT HIT REPLY–DO NOT RESPOND TO THE ENTIRE LIST IF YOU ARE SIMPLY ASKING THAT YOUR NAME BE ADDED.

We will not be listing the names on the ad itself (only the supporting departments and program units) because we’re trying to make the material quoted from the students the major focus of the ad (as you will see in the draft). We’ll list the individual names on the AAAS website and indicate on the ad itself that people may go to the website to read individual faculty names."

When you read this, the connection between the demonstrators referred to by Johnson (the only demonstrations on or around campus at the time were those concerning the alleged rape) and the refernces in the ad becomes more clear. While Johnson may have a tendency to go overboard at times, much of his criticism of Duke's performance is justified.

It is, to the put matter gently, an unsound hermeneutic principle to ascribe views to 88 people based on a statement in an e-mail by one person that contradicts the explicit text of the ad the rest of them signed. The ad itself explicitly separates issues of sexism and racism at Duke from the lacrosse incident and explicitly withholds judgment about the guilt or innocence of the accused players. (The ad says, "Regardless of the results of the police investigation" there is still "anger and fear of many students who know themselves to be objects of racism and sexism"; a student is quoted as saying, "If it turns out these students are guilty, I want them expelled. But their expulsion will only bring resolution to this case and not the bigger problem.") Professor Lubiano would have done better to write "prompted by the lacrosse team incident" rather than "about," but she will hardly have been the first person to put something carelessly in an e-mail. But whether or not she should be chided for her e-mail, it is as clear as plain English can be that the actual ad the 88 faculty signed does not jusify Professor Johnson's "overboard" assault on the professional and scholarly integrity of so many faculty at Duke.

So, too, when the ad says faculty are "listening" to students, there is no justification at all for taking that to mean faculty are listening to (let alone endorsing) those protesters on campus who, according to Johnson, were calling for "castration". The ad itself consists largely of quotes from students, none of which prejudge guilt or innocence. Again, quite obviously, the faculty ad signals that they are taking seriously concerns about racism on campus as expressed by the students and quoted in the ad.

Neither lawyers nor one expects historians would ordinarily credit such tortured interpretive practices as those Professor Johnson brings to bear in order to smear a "group" of faculty. That he overreached in this regard is all the more regrettable since it is clear that there were some individual faculty who made comments (that have no resonance with the ad) that were, at best, intemperate and, at worst, grossly irresponsible. (A good example of the latter are the remarks of Houston Baker, which are duly rebuked by the Duke Provost here.)

ANOTHER: A reader calls my attention to this revealing statement about Professor Johnson's crusade by Duke law professor James Coleman, who played an important (and universally praised) role in the campus investigation of the charges.

ONE MORE: Professor Johnson calls my attention to his reply to Professor Piot here. It is an unusual document, though revealing about how Professor Johnson thinks about things. In any case, readers are invited to read it in conjunction with Professor Piot's critique, and decide for themselves. You may also want to read the comments that follow Professor Johnson's blog posting to get a flavor for how those obsessed with this matter see the world.

AND YET ANOTHER: This detailed analysis is illuminating about Professor Johnson's modus operandi; as the author notes:

[Professor Johnson's] worst failure...is that he is a friend to ignorance, often in subtle ways but sometimes they’re not so subtle. He’s willing to pass judgment without drawing clear lines between what he knows for sure, what’s probable, and what’s unknown, and he avoids shining a light into the grey areas if they make for useful innuendo. He offers little resistance to readers inclined to render superficial and harsh judgment of the figures he attacks–regularly boiling his attacks down to a dismissive or derisive phrase that’s repeated as a tag line or epithet, for instance....[H]e often makes no attempt to interpret and convey the main point and purpose of the texts he criticizes, approaching them instead like a prosecutor digging for evidence, free to pull out a passage or just a phrase and give it a literalistic, context-free reading if that furthers his case. Combine that with the habit of dwelling with self-righteous and unwavering certainty on an interpretation of the evidence that puts his opponents in the worst possible light, and there’s little chance of constructive debate...

For evidence in support of this judgment, follow the link. (If you scroll into the comments to that post, you can also find Professor Johnson's reply. Some of the other comments are sociologically interesting, reflecting the "groupthink" mentality of those who are obsessed with this case and what it supposedly reveals about academia.)

ONE MORE (JANUARY 2): Professor Johnson has responded briefly to this posting, though, oddly, without linking to my discussion. (He has also backdated his posting, I suppose to permit other items to be at the top of his blog on the Duke lacrosse case.) Most of his post seems devoted to a side-issue (allegedly raised by other critics), but here is what he says by way of reply to my comments:

Prof. Brian Leiter...contended that the Group of 88’s ad didn’t presume guilt by stating that something “happened” to Mangum; by thanking protesters who presumed guilt; or by including lines such “I wonder now about everything . . . if something like this happens to me” and “I can’t help but think about the different attention given to what has happened from what it would have been if the guys had been not just black but participating in a different sport, like football, something that’s not so upscale.”

Notice, of course, that Professor Johnson simply makes no reference to the rest of the ad, or what I actually said about it (above), focusing on four lines or phrases considered in isolation. Look again, for yourself, at the ad. Read the whole thing, not just the four snippets Professor Johnson flags. The ad is nice enough to even start with a rather straightforward topic sentence. It says:

Regardless of the results of the police investigation, what is apparent everyday now is the anger and fear of many students who know themselves to be objects of racism and sexism, who see illuminated in this moment’s extraordinary spotlight what they live with everyday. They know that it isn’t just Duke, it isn’t everybody, and it isn’t just individuals making this disaster.

That is pretty clear: the point of the ad does not turn on the guilt or innocence of the accused; instead, the accusations levelled by an African-American stripper at white lacrosse papers have focused attention to issues of racism and sexism at Duke unconnected to this particular incident. The introductory paragraph concludes by labelling this racial and sexual situation "a disaster," which is then the subject of the rest of the ad.

There then follow eleven student quotations, most of which make not even an allusion to the rape allegations (though one says, "If it turns out that these students are guilty, I want them expelled. But their expulsion will only bring resolution to this case and not the bigger problem," the bigger problem being the actual subject of the ad, rather obviously), but instead recount student feelings about racism and sexism on campus: e.g., "Being a big black man, it's hard to walk anywhere at night, and not have a campus police car slowly drive by me" and "You go to a party, you get grabbed, you get propositioned, and then you start to question yourself."

The ad then concludes by returning to the "disaster" theme from the introduction: "The students know that the disaster didn’t begin on March 13th and won’t end with what the police say or the court decides." That's because the disaster which is the subject of the ad is, quite obviously, race and gender relations at Duke, not the allegations of rape. The ad concludes by affirming faculty interest in student concerns about racism and sexism at Duke, stating: "We’re turning up the volume in a moment when some of the most vulnerable among us are being asked to quiet down while we wait. To the students speaking individually and to the protestors making collective noise, thank you for not waiting and for making yourselves heard."

Now let us take the four lines/phrases that Professor Johnson considers, in reverse order, bearing in mind that Professor Johnson's thesis is that the ad "presume[s] guilt," notwithstanding all of the preceding, including the explicit bracketing of questions of guilt and innocence.

(1) In Professor Johnson's view, a student (one of the eleven quoted) who comments on "the different attention given to what has happened from what it would have been" if it were black football players, rather than white lacrosse players is presuming that the stripper was raped by the white lacrosse players. But this simply makes no sense: for the "attention" was given to the allegations of rape, since there was nothing more at this point. So the student is making the observation that there would have been rather different attention if the allegations had been levelled at black football players, instead of white lacrosse players. (I don't know whether the student is right, but that is neither here nor there.) There is nothing in this student's remark to warrant ascribing a presumption of guilt to the remark.

(2) The second of the eleven quotations on which Professor Johnson focuses reads in full as follows: "Everything seems up for grabs--I am only comfortable talking about this event in my room with close friends. I am actually afraid to even bring it up in public. But worse, I wonder now about everything. . . . If something like this happens to me . . . What would be used against me--my clothing? Where I was?" This is the only one of the eleven student quotes that arguably reflects a judgment that something was done to the stripper. And yet the quote itself does not, rather strikingly, say that the stripper was raped by the lacrosse players. The line of thought is plainly from the fact of the allegations of rape to the thought, "What if I were raped, what would people say about my allegations?" That is a perfectly natural thought to have under the circumstances, especially if you are a minority woman on a campus you perceive to be both racist and sexist. If, in context, all the other quotes and text made clear that the accused were presumed guilty, then it would make sense to treat this statement as yet more evidence that everyone was assuming guilt. But since the opposite is the case--since the text and the other quotes explicitly withhold judgment on the guilt of the accused--Professor Johnson's reading is uncharitable.

(3) The ad simply does not, contrary to Professor Johnson's misleading presentation, "thank[] protesters who presumed guilt," it rather, in context, thanks "the students speaking individually and...the protestors making collective noise." In the context of the ad, it rather clearly thanks them for calling attention to the disaster which is the subject of the ad: namely, racism and sexism at Duke. (I should add, in fairness, that I do not know that there is really lots of racism and sexism at Duke; that is a different issue.) Professor Johnson misrepresents the ad through a rather curious tactic: because some protesters at the time clearly did presume guilt, Professor Johnson asserts that they in particular are being thanked. But that is a strange hermeneutic principle: if X and Y are thanked jointly, why not read that as thanking them for their joint actions, rather than the actions and words of just Y (or just some subset of Y, as Professor Johnson has done)? If the ad consisted of student quotes calling for the "castration" of the lacrosse players or demanding that they confess, there might be some warrant for Professor Johnson's rendering of the "thanks". As it is, he has just gone out of his way to put the most uncharitable spin possible on a fragment of one sentence.

(4) We come, finally, to the strongest piece of evidence for Professor Johnson's preferred reading. Following the introductory paragraph, quoted above, and the reference to racism and sexism at Duke as a "disaster," the ad states, "These students are shouting and whispering about what happened to this young woman and to themselves." That sentence, standing in isolation, could be interpreted as presupposing guilt. Yet just three of the eleven quotes that follow even allude to the rape allegations (and one of those does so by explicitly witholding judgment on guilt), while the majority do not even include allusions to the allegations, and none make it central. In light of the topical introduction preceding this sentence, and the quotes that follow it, why would one read that one sentence Professor Johnson's way? Bear in mind that it is widely believed that only 2% of accusations of rape are false (though, in fact, there is no reliable research on this), and given that perception, it was not unreasonable at the time to think something had happened to the stripper the night of the lacrosse party, even if it was not a rape or sexual assault, and that is all this one sentence need presume. That even that presumption turned out to be false still has no bearing on the actual focus of the ad, which is not on the accussed lacrosse players, but on student perceptions of racism and sexism on campus.

So by my tally, Professor Johnson can point to just two snippets (2 and 4, above) that it could be argued reflect a presumption of guilt, but which are not fairly so read when situated in the context of the ad as a whole. Professor Johnson, however, resolutely ignores the language and context inconsistent with his portrayal of the ad, and so by any reasonable hermeneutic standards, misrepresents the actual ad.

I don't intend to belabor this matter any further, since I don't, as they say, "have a horse in this race." I was simply struck some time ago by the obvious misreadings that Professor Johnson kept hammering away at, and when someone sent me the link to Professor Piot's article, I thought I'd write something up, especially since the whole case is of interest to many law professors.

Given that in many respects, Professor Johnson seems to have a keen interest in the truth and the evidence, it is puzzling that he has been so obstinate on this particular subject. Perhaps because he has so clearly treated the Duke faculty who signed the ad unfairly and unreasonably (for example, mocking their scholarship), and that mistreatment has now become central to the narrative about the Duke lacrosse case he has sold to the media and the reading public, he feels he can not retreat from it. He is helped by the fact that so few want to weigh in publicly about this matter, given the ugliness that seems to surround it. The focus on the non-group of 88 faculty who signed the ad is all the more unfortunate given that, as Professor Johnson has pointed out, individual faculty, such as Professor Baker, have made inappropriate public statements which demand no interpretation, let alone the tortured parsing of out-of-context phrases that has become the hallmark of Professor Johnson's misguided crusade.

December 17, 2007

Cornell's Wippman Named Dean at Minnesota

David Wippman (international law) at Cornell Law School has been named the new Dean of the University of Minnesota Law School, effective July 1, 2008. Wippman, who was a finalist here at the time we chose Larry Sager as Dean in 2006, was an impressive candidate and will, no doubt, be a very good Dean for Minnesota.

December 16, 2007

Don't Be Fooled by the Picture!

A paper published online in September by the journal Cognition shows
that assertions about psychology — even implausible ones like “watching
television improved math skills” — seem much more believable to
laypeople when accompanied by images from brain scans. And a paper
accepted for publication by The Journal of Cognitive Neuroscience
demonstrates that adding even an extraneous reference to the brain to a
bad explanation of human behavior makes the explanation seem much more
satisfying to nonexperts.

Eric Racine, a bioethicist at the Montreal Clinical Research
Institute, coined the word neurorealism to describe this form of
credulousness. In an article called “fMRI in the Public Eye,” he and
two colleagues cited a Boston Globe article about how high-fat foods
activate reward centers in the brain. The Globe headline: “Fat Really
Does Bring Pleasure.” Couldn’t we have proved that with a slice of pie
and a piece of paper with a check box on it?

The way conclusions from cognitive neuroscience studies are reported
in the popular press, “they don’t necessarily tell us anything we
couldn’t have found out without using a brain scanner,” says Deena
Weisberg, an author of the Journal of Cognitive Neuroscience paper. “It
just looks more believable now that we have the pretty pictures.”

December 13, 2007

Ferejohn from Stanford Poli Sci to NYU (Law & Politics)

John Ferejohn, professor of political science at Stanford University and a regular half-time visitor at New York University for many years, will move full-time to NYU starting in 2009-10, where he will hold appointments in the Law School and the Department of Politics. Ferejohn is a leading scholar in the areas of positive political theory and the study of political institutions and behavior.